BACKGROUND DOCUMENT: -
CONCOURT RULING ON PRIVATE PROSECUTIONS
The NSPCA only prosecutes where it has tried to educate or negotiate and failed, or when in the face of intentional, blatant cruelty. Therefore when the National Prosecuting Authority (NPA) declines to proceed with our cases, we are hampered in our mandate to fight cruelty and to promote humane treatment of animals.
Together with our legal advisors we took a decision to approach the High Court in Pretoria to enable us to institute private prosecutions in cases where the NPA declined to prosecute. Our Application was dismissed. The Supreme Court of Appeal (SCA) later upheld this ruling, stating that to allow the NSPCA to proceed with private prosecutions would effectively create an alternate prosecution system.
The example provided in our papers related to the cruel and inhumane slaughter of a camel during Qurbani, which was undertaken in a manner completely contrary to the precepts of Islam.
This was not the only case where the NPA had declined to prosecute our cases. It is an all too frequent occurrence, and the cases which fell by the wayside included those relating to ostrich toe clipping, rodeo, dairy farms, crocodiles held in single pens and an abattoir causing suffering during slaughter.
The matter was then taken to the Constitutional Court and was heard on 23 August 2016. The issue in dispute is Section 7 (1) (a) of the Criminal Procedure Act which allows any private person to apply for permission to privately prosecute whoever they believe committed an offence against them where the NPA refuses to pursue public prosecution.This section however does not accord organisations, termed as “juristic persons”, that right.
The National Council of SPCAs (NSPCA) is mandated to act in the interest of animals, to take appropriate action to protect them, and to promote their humane treatment by man. It is however a juristic person. For this reason, the NSPCA challenged the legal system in our country in our endeavours to fight for the power to prosecute privately.
Advocate, Kevin Hopkins, acting for the NSPCA, summed up the reason for our application when he stated that “the purpose behind private prosecutions is to ensure that people who commit crimes do not go unpunished simply because the National Prosecuting Authority (NPA) declined to prosecute.”
In its court papers, the NSPCA argued that there was no rational basis for treating organisations differently from human beings in the realm of private prosecutions.
Judgement wasreserved after argument, and handed down on 08 December 2016.